Sanju Panda, J.
1. In this Writ Petition, challenge has been made to the Order Dated 15.8.2008 passed by the Learned Ad hoc Addl. District, F.T.C. No-II, Cuttack in FAO No. 137 of 2007 setting aside the order of status quo passed by the Learned Civil Judge (Senior Division), 1st Court, Cuttack on- 5.9.2007 under Order 39 Rules 1 & 2 of the Civil Procedure Code (in short, 'the Code') in I.A. No. 240 of 2007 arising out of C.S. No. 366 of 2005.
2. The facts of the case, as narrated in the application, are as follows:
The Petitioner as Plaintiff instituted C.S. No. 366 of 2005 for declaration that the Defendants have not derived any right, title & interest over the suit schedule property by virtue of the alleged sale deed dated 11.3.1983 & for permanent injunction against the Defendants restraining them from interfering with his peaceful possession over the suit land. It was pleaded by the Plaintiff that he is the exclusive owner in possession of the suit schedule property which was allotted to him by virtue of the decree passed in Title Suit No. 292 of 1977. One Chouthmal Kandoi was a businessman of the locality & had good relation with the Plaintiff. Sometimes he used to help the Plaintiff in official work as the Plaintiff is an illiterate person. Accordingly, Chouthmal Kandoi proposed the Plaintiff to execute a power of attorney in his favour so that he would be able to look after the business of the Plaintiff & in good faith the Plaintiff executed the power of attorney in favour of Chouthmal Kandoi in the year 1983. The power of attorney was drafted in English, but the same was not read over & explained to the Plaintiff before registration Till 2005 Plaintiff was in dark about the actual mischief played by Chouthmal Kandoi in respect of the power of attorney. Said Chouthmal Kandoi executed the said sale deed fraudulently. The said fact came to the knowledge of the Plaintiff when Defendant Nos. 4 to 6 disclosed about such a sale deed in their written statement filed in Title Suit No. 498 of 2003. Plaintiff pleaded that he never executed the sale deed & the same was never acted upon & it is a sham document for want of consideration & delivery of possession. Hence the suit.
3. The Defendants filed their written statement traversing all the plaint averments & taking a plea that the sale deed was executed by the Plaintiff with his full knowledge & for that he received the consideration money. In the suit, the Plaintiff filed an interim application under Order 39 Rules 1 & 2 of the Code to restrain the Defendants from alienating the suit schedule land till disposal of the suit. The Defendants filed their objection to the said interim application. After hearing the parties the Learned Civil Judge passed an order of status quo on 5.9.2007 in respect of suit schedule land vide Annexure-1. Being aggrieved by the said order of status quo, the Defendants filed FAO No. 137 of 2007 before the Learned District Judge, Cuttack.
4. Learned Ad hoc Addl. District Judge, FTC No. II, Cuttack allowed the said FAO & set aside the Order Dated 5.9.2007 passed by the Learned Civil Judge on the grounds that there is specific provision under Section 52 of the T.P. Act regarding the sale during pendency of the suit. Thus, there was no necessity of passing the order of status quo particularly in this matter as the facts & circumstances of the case demand. The Plaintiff has sold four adjoining pieces of land & except the Defendants other three, vendees are residing over their purchased land by constructing their house & while Plaintiff says that he is in possession, the Defendants say that they are in possession by virtue of the sale deed dated 11.3.1983. In the facts & circumstances of the case when the Plaintiff has failed to file any document to say that his power of attorney has managed to get the sale deed executed from him it is presumed that the Plaintiff has failed to prove his prima facie case. Besides as there are remedies for sale during pendency of the suit, the order passed by the Learned Civil Judge was set aside. Challenging the said order passed by the Learned Ad hoc Addl. District Judge, FTC No. II, Cuttack, the Plaintiff-Petitioner has filed this Writ Petition.
5. Learned Counsel for the Plaintiff-Petitioner submitted that earlier an order of status quo was passed by the Learned Civil Judge on the application of the Defendants-Opposite Parties in Interim Application No. 447 of 2005 & in Interim Application No. 240 of 2007 filed by the Plaintiff-Petitioner, an order of status quo was passed for the interest of justice. Since the Learned Civil Judge passed the order of status quo directing both the parties to maintain status quo, the Learned Ad hoc Addl. District, F.T.C. No-II, Cuttack should not have interfered with the same.
6. Learned Counsel for the Defendants-Opposite Parties submitted that since the Learned Ad hoc Addl. District, F.T.C. No-II, Cuttack rightly set aside the impugned order passed by the Learned Civil Judge, this Court should not interfere with the same.
7. This Court by Order Dated 28.8.2008 called for the LCR. From the LCR it appears that the Learned Civil Judge in Interim Application No. 343 of 2005 filed by the Plaintiff-Petitioner passed an order of status quo. Thereafter, Defendants-Opposite Parties filed Interim Application No. 448 of 2005 under Order 39 Rule 4 of the Code before the Learned Civil Judge who dismissed the same on contest. Again, Defendants-Opposite Parties filed Interim Application No. 447 of 2005 under Order 39 Rules 1 & 2 of the Code before the Learned Civil Judge in which the parties were directed to maintain status quo in respect of the land till disposal of the original suit.
8. From the above, it appears that the order of status quo passed in Interim, Application No. 447 of 2005 has not been challenged. Therefore, that order is still continuing. During subsistence of the said order, Plaintiff filed Interim Application No. 240 of 2007 to restrain the Defendants Opposite Parties from alienating the suit schedule property either personally or through authorized agent till disposal of the original suit. The Learned Civil Judge, in the interest of justice, rightly directed both the parties to maintain status quo as earlier order of status quo is continuing. The Learned Ad hoc Addl. District, F.T.C. No-II, Cuttack without applying his judicial mind set aside the said order of status quo. Ordinarily Court of appeal will not interfere with the exercise of discretion passed by the Trial Court & substitute for its own discretion. Law is well settled that the interference with the discretionary order, however may be justified if the lower Court acts arbitrarily or perversely, capriciously or in disregard of sound legal principles or without considering all relevant records. Here, the lower Appellate Court has come to such a conclusion as the Trial Court passed the order arbitrarily & perversely. The lower Appellate Court had also ignored the fact that in one interim application the order of status quo is continuing while in another interim application it set aside the same The parties will not suffer in any way when the order of status quo is continuing.
9. Therefore, the exercise of discretion by the Lower Appellate Court is an error apparent on the face of the record. Hence, this Court, in exercise of the jurisdiction under Article 227 of the Constitution of India, sets aside the impugned Order Dated 15.8.2008 passed by the Learned Ad hoc Addl. District, F.T.C. No-II, Cuttack in FAG No. 137 of 2007.
10. The Writ Petition is accordingly allowed. No costs.